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Representation - Lawyers - Incapacity [LSA 38]. Hutton v. Law Society of Ontario
In Hutton v. Law Society of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an LSO lawyer member's appeal, this brought against "the decisions of the Law Society of Ontario (“LSO”) which found him incapacitated under s. 38(1) of the Law Society Act, R.S.O., 1990, c.L.8 (“LSA”) and suspended him indefinitely":[1] The appellant Mr. Hutton appeals the decisions of the Law Society of Ontario (“LSO”) which found him incapacitated under s. 38(1) of the Law Society Act, R.S.O., 1990, c.L.8 (“LSA”) and suspended him indefinitely.
[2] Mr. Hutton had a successful career in construction law until 2015, when his employer, Gary W. Gibbs, became concerned about Mr. Hutton’s erratic behaviour and allegations that the firm where they both worked was being infiltrated by spies. Mr. Gibbs directed Mr. Hutton to undergo a psychiatric examination and terminated Mr. Hutton despite the examination finding no convincing evidence of a psychiatric disorder.
[3] Mr. Hutton initiated a series of actions at the Federal Court starting in 2017 alleging that two former romantic partners as well as many other acquaintances were spies working for the government. These actions were increasingly criticized by the Federal Courts, including being characterized as ineffective, costly, wasteful to the system, displaying a lack of good faith and amounting to an abuse of process.
[4] In 2017, the LSO received information about Mr. Hutton’s behaviour at the Federal Court which led to concerns about his capacity to practice law. All of Mr. Hutton’s proceedings at the Federal Court were eventually stayed until he retained counsel or the LSO completed its examination about Mr. Hutton’s capacity. In 2024, Mr. Hutton was declared a vexatious litigant because of his behaviour in the Federal Court.
[5] As part of the LSO’s application for a determination that Mr. Hutton is or has been incapacitated, the LSO ordered Mr. Hutton to attend a psychiatric examination under s. 39 of the LSA. Mr. Hutton was examined by Dr. Andrew Morgan, who diagnosed Mr. Hutton with a delusional disorder.
[6] At the Merits Hearing, Mr. Hutton did not object to Dr. Morgan being qualified as an expert. The Hearing Division accepted Dr. Morgan’s report and in its Decision dated March 1, 2023 found that Mr. Hutton had engaged in conduct that compromised the integrity of the justice system (the “Merits Decision”).
[7] On May 9, 2023, the Hearing Division dismissed Mr. Hutton’s motion to summon various witnesses on the basis that he had not established any evidentiary basis that the witness could provide relevant or material testimony (the “Summons Decision”).
[8] On December 5, 2023, the Hearing Division found Mr. Hutton was incapacitated and suspended him indefinitely until certain conditions had been met under s. 40 of the LSA. It also granted the LSO $15,000 in costs (the “Capacity Decision”).
[9] Mr. Hutton appealed. In a decision dated January 31, 2025 reported at Law Society of Ontario v. Hutton, 2025 ONLSTA 6, the Appeal Division consisting of three adjudicators held that Mr. Hutton could not object on appeal to the expert after agreeing to his qualifications at first instance. It affirmed the Hearing Division’s admission of Dr. Morgan’s report, finding that, contrary to Mr. Hutton’s submissions, Dr. Morgan did not make findings of fact, but rather addressed the evidence from a medical perspective. In affirming the Hearing Division’s reliance upon Dr. Morgan’s report, it held that in reaching his opinion that Mr. Hutton’s conspiracy claims were delusional, Dr. Morgan properly considered, amongst other factors, findings of courts and LSO tribunals about Mr. Hutton’s conspiracy claims (the “Appeal Decision”).
[10] The Appeal Decision held that the Hearing Division’s consideration of Mr. Hutton’s conduct in the Merits Decision was appropriate in the context of the capacity application.
[11] The Appeal Decision dismissed Mr. Hutton’s argument that Dr. Morgan and the panel should not have given any weight to everyone’s denials of involvement with the security apparatus as the CSIS Act and the Foreign Interference and Security of Information Act make it legal to lie about their involvement.
[12] The Appeal Decision also held that, in dismissing Mr. Hutton’s summons motions, the Hearing Division correctly applied the jurisprudence and committed no error applying it to the facts. On the fresh evidence motion, the Appeal Decision found that the tendered fresh evidence would not reasonably be expected to have affected the result of the Merits Decision. The Appeal Decision found no palpable and overriding error and dismissed the appeal.
[13] Mr. Hutton’s submissions in this court largely repeat the submissions already addressed by the Appeal Decision. He submitted that the Appeal Division erred in upholding the Hearing Division’s conclusions on the following issues: (1) in concluding that the Hearing Division properly admitted Dr. Morgan’s expert opinion evidence; (2) in failing to consider Charter values; (3) in dismissing Mr. Hutton’s motion to call Anne Bank as a witness; and (4) in dismissing his motion for fresh evidence.
[14] The Appeal Decision provided comprehensive reasons addressing Mr. Hutton’s submissions. The appeal is dismissed substantially for the reasons in the Appeal Decision with the following comments:
Hearing Division properly admitted Dr. Morgan’s expert opinion evidence
[15] Dr. Morgan was properly qualified as an expert in his capacity as a forensic psychiatrist as evidenced by his curriculum vitae and with no objection by Mr. Hutton. Mr. Hutton did not object to the admissibility of the Dr. Morgan’s report so no voir dire was conducted on the admissibility of Dr. Morgan’s evidence. Mr. Hutton does not point to anywhere in his cross-examination of Dr. Morgan where he successfully dislodged Dr. Morgan’s reliance on any of the eight factors on which he based his opinion. Moreover, Mr. Hutton has not demonstrated any palpable and overriding error that requires the intervention of this Court.
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